In earlier articles here, and here, our firm, KCNF, detailed the Biden Administration’s efforts to control the spread of COVID by issuing an Executive Order requiring federal employees and federal contractors to be vaccinated. In addition, the vaccine mandate was applied by regulations issued by the Department of Health and Human Services (to health care workers), and by the Department of Labor (to employees of large employers). In the second of these articles, published on December 30, 2021, we discussed the mandates issued to employees of large employers and health care workers after the Supreme Court agreed to review a pair of appeals-court decisions that approved them. The Court eventually ruled that the HHS regulation was valid for health care workers, but the Labor regulation was not valid for employees of large companies. (While employers themselves are free to impose such a vaccine requirement on their employees, the Court held that the Labor Department lacked the authority to issue the mandate.)
In that article, we also made the following observation: Significantly, the mandates governing federal employees have not yet been successfully challenged. When employees actually are discharged or suspended without pay for violating the mandates and then appeal those actions, we may begin to see how the above issues are handled for the rank and file.
We now have some answers. In January 2022, a U.S. District Court Judge issued an Order preventing the Biden Administration from enforcing the federal employee mandate anywhere in the country. The Judge reasoned that a) the employees were free to ask the court to address their concerns before the mandate was enforced; b) their claims were “ripe” for review because the employees faced “inevitable” dismissal if they continued to refuse; and c) the vaccine mandate was not authorized under the Constitution or any federal law. The Government immediately appealed that Order, asking that the mandate be allowed to remain while the appeal was pending, but a panel of judges in the Fifth Circuit Court of Appeals rejected that request.
On April 7, 2022, however, another panel of judges in the Fifth Circuit issued a decision reversing the Judge’s January Order. The court’s reasoning closely follows the Government’s arguments. Most importantly, the court held that the employees did not have the right to bring their case because of the Civil Service Reform Act (CSRA). Congress enacted the CSRA in order to bring consistency to claims filed by federal employees in court. Because the old system had numerous gaps in what could be appealed, and when those appeals could be filed, the CSRA added several laws that were clear: competitive service employees (and later many excepted service employees) who are subjected to an “adverse action,” i.e., suspension of 15 days or more, demotion, or firing, are permitted to appeal those actions to the Merit Systems Protection Board, where they can be represented by counsel and obtain a hearing before an Administrative Judge. If the employee loses at the Board, they have the ability to seek review of that decision in the U.S. Court of Appeals for the Federal Circuit, and then before the Supreme Court.
The flip side of the CSRA, however, is that it is exclusive: employees confronted with an adverse action are afforded a significant procedure in which to make their case to the Board, but they are not authorized to deviate from that procedure. The Fifth Circuit panel said this was exactly what the district judge ignored. Federal employees do not have the right to go to court to prevent an adverse action; rather, their only right is the one Congress gave them to seek review of that action after it is taken. If the employees are fired and believe that action violates their rights, they are free to argue those violations to the Board, the Federal Circuit, and as far as the Supreme Court. What they cannot do is ask a judge to intervene in advance.
The mandate has been suspended since the January decision, and no federal employee has been disciplined since then for refusing the vaccine. Although the Administration could have reinstated the vaccine mandate right after the April panel decision was issued, it has indicated that it intends to wait for the time being. There are good reasons to hesitate: first, it is not clear how long the panel’s decision will last, because the three-judge panel’s decision can be reviewed by all 17 judges on the Fifth Circuit. Eleven of those judges were appointed by Republican presidents, and six of those were appointed by former President Trump. Second, regardless how the full court rules, either side can petition the Supreme Court for review; as we have seen, the outcome of that review is hard to predict.
As of December 2021, the Government estimated that 93% of federal employees had received at least one COVID vaccine shot. The remaining 7% (some of whom have requested exemptions) will have some additional time to decide what to do if the mandate is eventually affirmed.
George Chuzi is a partner at KCNF. The firm has just published the 2021 edition of “Security Clearance Law and Procedure,” the essential resource in that field. If you have any concerns or questions regarding activities that may implicate a security clearance, the attorneys at KCNF are experienced in clearance matters and are available to assist.